State v. Mitchell

(CLARK, J., dissents, arguendo .) June Term, 1896, before Boykin, J . His Honor charged the (785) jury that the oath and examination of the prosecutrix taken before the justice of the peace was under the statute prima facie evidence of defendant's guilt, and that the burden was upon defendant to exonerate himself from the charge so made against him. To this charge the defendant excepted and appealed from the judgment rendered. The charge that the oath and examination of the mother of the bastard child was prima facie evidence of the defendant's guilt, was not erroneous. S. v. Rogers , 79 N.C. 609 ; The Code, sec. 32. Prima facie evidence is that which is received or continues until the contrary is shown. Kelly v. Johnson , 6 Peters (U.S.), 622. It is clear from the terms of the Statute (Code, sec. 32) that the word "presumptive" is used there to define evidence that must be received and treated as true "till rebutted by other testimony, which may be introduced by the defendant," and that it is therefore synonymous with prima facie . We see no force in the suggestion that there was error in the use of one of the terms rather than the other.

Another ground of objection to the competency of the written examination of the mother is that its admission was a violation of the Constitution, Article I, sec. 11. That section provides that "in all criminal *Page 490 prosecutions every man has the right to be informed of the accusations against him, and to confront the accusers and witnesses with other testimony.

Conceding that since the begetting of a bastard child has been made a criminal offense, the accused has the right to insist upon the (786) production of his accusers, it is nevertheless, a right that is waived by failure to assert it in apt time like the guaranty contained in the same section, that he shall not be compelled to give evidence against himself. The application of the principle to the crimination of a party by his own testimony is so common in practice, as to have become familiar learning. When asked the criminating question it is the privilege of the witness to determine whether it is preferable to answer, or to ask the protection of his constitutional right. Indeed, it is a general rule that a party may waive the benefit of a constitutional as well as a statutory provision. Sedgwick Stat. and Const. Law, p. 111. The right may be waived either by express consent, by failure to assert it in apt time or by conduct inconsistent with a purpose to insist upon it. Sedgwick, supra; Lee v. Tillotson , 24 Wend., 337 ; Const., Article I, sec. 19; Code, sec. 398; Reynolds v. U.S. , 98 U.S. 145 ; S. v. Behrman , 114 N.C. 797 ; S. v. Thomas , 64 N.C. 74 ; Driller Co. v. Worth , 118 N.C. 746 , and same case, 117 N.C. 515 . It is settled law in North Carolina, that the more important privilege of being present in person, so as to confront one's accusers on trial for a criminal offense, may, except in capital felonies, be waived by counsel. S. v. Jacobs , 107 N.C. 772 ; S. v. Weaver , 35 N.C. 203 ; S. v. Paylor , 89 N.C. 539 ; S. v. Kelly , 97 N.C. 404 . For like reasons, one who is actually or constructively present at the trial of an indictment against him for offenses of the lower grade must be deemed to have waived when he does not in express terms insist upon the bodily presence of the prosecutrix on the witness stand. The Legislature has made a defendant a competent witness on the trial of an indictment against himself. He may exercise this privilege or not, but if he once elects to go upon the stand he is deemed to have (787) waived his right to refuse to answer questions intended to elicit self-criminating testimony from him, where such questions would have been competent on the examination of other witnesses. S. v. Thomas , 98 N.C. 599 ; S. v. Allen , 107 N.C. 805 . Where a statute gives a prisoner the privilege of taking depositions outside of the State upon condition that the State shall have the like right, it has been held that he waives the benefit of the constitutional privilege by the exercise of the right to avail himself of such testimony. Butler v. State , 97 Ind. 378 . He takes the new statutory privilege upon the condition annexed by its provisions to its acceptance — that he shall thereby waive his constitutional right to face the witness. The Legislature clearly has the *Page 491 general power to pass statutes giving artificial weight to any particular kind of testimony in specified classes of criminal actions. S. v. Burton , 113 N.C. 655 , and cases there cited. The statute (Code, sec. 32) must be enforced till it comes in conflict with the Constitution. The broad exception to the admissibility of the oath and examination of the woman, is sufficient to raise the question which we first discussed; but if the defendant intended to throw himself upon his constitutional privileges, which he might at his option waive or demand, it was incumbent on him to object on the specific ground that he insisted upon the right to have the woman introduced, and to be confronted by her as his accusser [accuser]. Had the defendant pursued this course, it may be that the solicitor would have had the prosecutrix sworn and tended her for cross-examination. Such an offer unquestionably would have afforded him the opportunity contemplated by the Constitution of meeting his antagonist face to face. S. v. Thomas , 64 N.C. 74 . This general assignment of error in admitting a document declared competent by statute no more raises the constitutional question, than would an exception (788) to criminating testimony given by a witness without objection on the specific ground that it might subject him to punishment. The constitutional right, if it existed, was waived by the failure to object to the testimony, because the right guaranteed to him was not that he should be compelled to confront his accuser in a case like that before us, but that he might on demand have her compelled to meet him "face to face."

NO ERROR.

Avery, J.:

The charge that the oath and examination of the mother of the bastard child was prima facie evidence of the defendant’s guilt, was not erroneous. State v. Rogers, 79 N. C., 609 ; The Code, Sec. 32. Prima facie evidence is that which is received or continues until the contrary is shown. Kelly v. Johnson, 6 Peters, (U. S.) 622. It is clear from the terms of the Statute (Code, Sec. 32) that the word “presumptive” is used there to deñne evidence that must be received and treated as true “ till rebutted by other testimony, which may be introduced by the defendant,” and that it is therefore synonymous with prima facie. We see no force in the suggestion that there was error in the use of one of the terms rather than the other.

Another ground of objection to the competency of the written examination of the mother is that its admission was a violation of the Constitution, Article 1, Sec. 11. That section provides that “ in all criminal prosecutions every man has the right to be informed of the accusations against him and to confront the accusers and witnesses with other testimony.”

Conceding that since the begetting of a bastard child *786 has been made a criminal offence, the accused has the right to insist upon the production of his accusers, it is nevertheless a right that is waived by failure to assert it in apt time, like the guarantee contained in the same section that he shall not be compelled to give evidence against himself. The application of the principle to the crimination of a party by his own testimony is so common in practice as to have become familiar learning. When asked the criminating question it is the privilege of the witness to determine whether it is preferable to answer or to ask the protection of his constitutional right. Indeed, it is agen-eral rule that a party may waive the benefit of a constitutional as well as a statutory provision. Sedgwick Stat. & Const. Law, p. 111. The right may he waived either by express consent, by failure to assert it in apt time or by conduct inconsistent with a purpose to insist upon it. Sedgwick, supra ; Lee v. Tillotson, 24 Wend., 337 ; Const. Art. 1, Sec. 19 ; Code, Sec. 398 ; Reynolds v. U. S., 98 U. S., 145 ; State v. Behrman, 114 N. C., 797 ; State v. Thomas, 64 N. C., 74 ; Driller Co. v. Worth, 118 N. C., 746 , and same case, 117 N. C., 515 . It is settled law in North Carolina that the important privilege of being present in person, so as to confront one’s accusers, on trial for a criminal offence, may, except in capital felonies, be waived by counsel. State v. Jacobs, 107 N. C., 772 ; State v. Weaver, 13 Ired., 203 ; State v. Paylor, 89 N. C., 539 ; State v. Kelly, 97 N. C., 404 . For like reasons, one who is actually or constructively present at the trial of an indictment against him for offences of the lower grade must be deemed to have waived, when he does not in express terms insist upon the bodily presence of the prose-cutrix on the witness stand. The legislature has made a defendant a competent witness on the trial of an indictment against himself. He may exercise this privilege or *787 not, but if he once elects to go upon the stand lie is deemed to have waived his right to refuse to answer questions intended to elicit self-criminating testimony from him, where such questions would have been competent on the examination of other witnesses. State v. Thomas, 98 N. C., 599 ; State v. Allen, 107 N. C., 805 . Where a statute gives a prisoner the privilege of taking depositions outside of the State, upon condition that the State shall have the like right, it has been held that he waives the benefit of the constitutional privilege by the exercise of the right to avail himself of such testimony. Butler v. State, 97 Ind., 378 . He takes the new statutory privilege upon the condition annexed by its provisions to its acceptance — that he shall thereby waive his constitutional right to face the witness. The Legislature clearly has the general power to pass statutes giving artificial weight to any particular kind of testimony in specified classes of criminal actions. State v. Burton, 118 N. C., 655 , and cases there cited. The statute (Code, Sec. 32) must be enforced till it comes in conflict with the Constitution. The broad exception to the admissibility of the oath and examination of the woman is sufficient to raise the question which we first discussed ; but, if the defendant intended to throw himself upon his constitutional privileges, which he might at his option waive or demand, it was incumbent on him to object on the specific ground that he insisted upon the right to have the woman introduced and to be confronted by her as his accuser. Had the defendant pursued this course it may be that the solicitor would have had the proseeutix sworn and tendered her for cross examination. Such an offer unquestionably would have afforded him the opportunity contemplated by the Constitution of meeting his antagonist face to face. State v. Thomas, 64 N. C., 74 . This general assignment of error in admitting a document declared *788 competent by statute no more raises the constitutional question, than would an exception to criminating testimony given by a witness without objection on the specific ground that it might subject him to punishment. The constitutional right, if it existed, was waived by the failure to object to the testimony, because the right guaranteed to him was not that he should be compelled to confront his accuser in a case like that before us, but that he might on demand have her compelled to meet him “face to face.”

No Error.